Suspension of Magistrates & Witholding of Remuneration: briefing by Magistrate Commission

NCOP Security and Justice

19 February 2013
Chairperson: Mr T Mofokeng (ANC, Free State)
Share this page:

Meeting Summary

The Magistrates Commission briefed the Select Committee on the provisionally suspended magistrates – Magistrate F Ntuli, Magistrate C Dumani. The Commission specified the details behind the suspensions and the Committee agreed with the decisions. The Committee was also briefed on the progress reports dealing with the suspensions the following Magistrates - Magistrate Masinga, Magistrate Rambau, and Magistrate Morake. Mr Rambau would continue to be remunerated while the other two would not receive any remuneration. The Committee also supported the Commission’s proposal to withhold remuneration for Magistrate Ndamase.

Meeting report

The Chairperson requested the Magistrates Commission (MC) to brief the Committee.

Briefing by the Magistrate Commission
Mr Hans Meijer, Magistrate from the MC, said that there were four progress reports in the form of provisional suspensions of magistrates.

Provisional Suspension of a Magistrate: Ms M Mokone
Mr Hans Meijer explained that the Minister of Justice and Constitutional Development (the Minister) had filed a report in Parliament to provisionally suspend Magistrate M Mokone due to charges of fraud and defeating the ends of justice against her. She was provisionally suspended and a report was table to inform her. The Magistrate did not survive a serious car accident that happened on 17 December 2012. Therefore, the Magistrates Commission had made an exception of putting the matter to rest.

Provisional Suspension of a Magistrate: Mr F Ntuli
Mr Andre Louw, Magistrate from the MC, stated that Magistrate F Ntuli was arrested and charged for drunken driving on Friday 17 August 2012. He was issued with a written warning to appear in court in Uitenhage on 13 February 2013. Magistrate Ntuli was previously convicted of the same offence on 20 March 2008. He was subsequently charged with misconduct, found guilty and on 8 July 2009, was strongly reprimanded by the Presiding Officer to refrain from similar misconduct in the future. In order to advise the Minister on his provisional suspension from office pending an outcome of the investigation, Mr Ntuli was afforded the opportunity to comment on the desirability of such provisional suspension. A letter dated 12 September 2012, addressed to Mr Ntuli, was attached as Annexure A.

A response dated 17 September 2012, filed on his behalf by Malgas Attorneys, as well as subsequent correspondence between the Commission and Mr Malgas respectively dated 25 September and 3 October 2012, was also attached as Annexure B, C and D.

Mr Louw said that the purpose was for the Committee to consider confirming the provisional suspension of Mr Ntuli.

Discussion
Mr L Nzimande (KZN, ANC) moved for the suspension of Mr Ntuli.

Mr V Manzini Mpumalanga, DA) supported the move.

The Committee agreed on the suspension of Magistrate Ntuli.

Provisional Suspension of a Magistrate: Mr C Dumani
Mr Meijer stated that t
he Minister, on the advice of the MC provisionally suspended Mr Dumani from office with effect from 16 September 2009. The suspension was confirmed by both Houses of Parliament on 12 and 17 November 2009 respectively. Mr Dumani was charged with 4 counts of misconduct.  He denied all the allegations against him.  At the conclusion of the misconduct inquiry he was found guilty of three
(3) of the four (4) charges of sexual harassment against female clerks at the Graaff-Reinet
Magistrate’s Office.  The Commission commenced leading evidence at the inquiry on 5 August
2009.  On 24 May 2010 the presiding officer at the misconduct inquiry recommended that Mr
Dumani be removed from office in terms of section 13(4)(a)(i) of the Act. Mr Dumani was legally represented throughout the inquiry.  Mr Dumani elected not to make any sub­mis­sions with regard to the imposition of sanction. Mr Dumani was given the opportunity to lodge written representations with the Commission.  Representations in respect of his conviction on the three counts of miscon­duct were received on his behalf from Peter Daubermann Attorneys. Having considered his representations and the documents as required by regula­tion 26(22) of the Regulations for Judicial Officers in the Lower Courts, 1994 read with section 13(4)(a)(i) of the Magistrates Act, No. 90 of 1993, the Commission at its meeting held on 26 and 27 August 2010 resolved to support the recommendation that Mr Dumani be removed from office on grounds of misconduct. On 2 September 2010 the Magistrates Commission appraised the Minister of Justice and Constitutional Development of the circumstances which moved it to make such a recommendation.  The Commission also advised Mr Dumani of its recommendation to the Minister to remove him from office in writing.

On 13 September 2010 Mr Dumani filed a motion application with the Registrar of the Eastern Cape High Court, requesting the Court to interdict and restrain the Minister of Justice and Constitutional Development from taking any further action against him, pending the final determination of another application before the Court to review and set aside the Presiding Officer’s decision in the disciplinary proceedings, convicting Mr Dumani on 3 counts of misconduct. The Minister did not oppose the application.  On 21 October 2010 the High Court granted the order in favour of Mr Dumani, interdicting and restraining the Minister from taking any further action against him. The review application was opposed.  The application was due to be heard on 24 March 2011 but was postponed due to administrative problems at the Grahamstown High Court.  The matter was heard on 29 July 2011.  On 12 August 2011 the review application was dismissed by the High Court with costs.

On 16 August 2011, the MC invited Mr Dumani to show cause why the Commission should not determine to withhold Mr Dumani’s remuneration, and determined to do so at its meeting held during September 2011.  Mr Dumani is therefore not receiving any remuneration.  This resolution was confirmed by Parliament on 24 November 2011. When Mr Dumani’s application for leave to appeal against the Grahamstown High Court’s order was dismissed, he petitioned to the Judge President of the Supreme Court of Appeal.  On 21 February 2012 leave to appeal to the Supreme Court was granted.   The Commission appeared before the Portfolio Committee and the Select Committee on 19 and 26 October 2011 respectively, requesting both Committees to hold Mr Dumani’s matter in abeyance, pending the finalisation of the appeal.   

The Supreme Court of Appeal (SCA) delivered judgment in the matter and dismissed Mr Dumani’s appeal with costs on 30 November 2012. The Secretaries of the respective Parliamentary Committees were advised accordingly and were on 7 December 2012 requested to again place Mr Dumani’s suspension/removal from office on the agenda of the respective Committees for consideration.

The Magistrates Commission was of the view that the Minister’s decision to suspend Mr Dumani, taken on 15 September 2011, still stood and that there was no reason why Parliament could not finally consider the report and pass a resolution that Mr Dumani not be restored to the office of Magistrate.

Discussion
Mr M Makhubela (COPE, Limpopo) moved for Mr Dumani not to be restored to the office of Magistrate.

Mr Nzimande seconded the move.

The Committee agreed that Mr Dumani not be restored to the Office of Magistrate.

Progress Report for Provisional Suspension of a Magistrate: Mr Masinga
Mr Louw staed that
on 19 March 2009 Mr Masinga had appeared in the Durban Magistrate’s Court on a charge of contravening section 17(a), read with section 7 of the Domestic Violence Act, No. 116of 1998.  It is alleged that he assaulted his wife with a blunt axe, that he kicked her, hit her with open hands and threatened to kill her.  He also assaulted his daughters. The criminal
proceedings were initially remanded to 14 April 2009.  Mr Masinga was granted bail of an amount of R1 000.00.  The criminal case was thereafter trans­ferred to the Regional Court,
Durban, where Mr Masinga appeared on additional charges of attempted murder and two counts
of assault. The criminal case was postponed on various occasions at the request of the defence.
An application by Mr Masinga for the recusal of the presiding officer was later abandoned.  The
State closed its case on 24 February 2011.  The Regional Court, Durban convicted Mr Masinga
on a charge of attempted murder on 23 May 2011. On 16 January 2012 he was sentenced to ten
(10) years imprisonment. He has appealed against his conviction and sentence. The appeal is
still pending.  

On 08 February 2010 the Commission charged Mr Masinga with 3 counts of misconduct.  A notice in terms of section 13(3) (e) containing the allegations against him, was served on Mr Masinga.  The National Education Health and Allied Workers Union (NEHAWU) informed the Commission in a letter received on 02 March 2010 that it acts on behalf of Mr Masinga. NEHAWU requested the Commission to com­mu­­nicate directly with them regarding the disciplinary matter.

Mr Masinga had indicated that he would conduct his own defence. He on 1 August 2012 commenced with cross-examining the witnesses for the Commission who had already testified in his absence. The inquiry was postponed on various occasions for this purpose. Mr Masinga was still in the process of cross-examining the second witness. The matter had been remanded to 1 8 March 2013. Mr Masinga does not receive any remuneration.  He was provisionally suspended from office.

Progress Report for Provisional Suspension of a Magistrate: Mr Rambau
Mr Louw stated that in the matter of Mr Rambau there were delays to proceed but The Minister,
on the advice of the Commission, provisionally suspended Mr Rambau from office with effect
from 4 November 2010 which suspension was confirmed by both Houses of Parliament on 18
and 24 November 2010 respectively.

On 8 February 2010, the Regional Court President of the Limpopo Province informed the Commission that Mr. Rambau, a regional magistrate at Polokwane, had been arrested for corruption on 5 February 2010.  Mr. Rambau was arrested together with the prosecutor and an attorney.  It is alleged that Mr. Rambau, the prosecutor and the attorney arranged the outcome of a trial by pre-determining the sentence for financial reward.  Mr. Rambau instructed an attorney to represent him in the misconduct inquiry.  At the misconduct inquiry on 08 April 2011 Mr. Rambau applied for the proceedings to be postponed without his attorney being present.  It was placed on record that Mr. Rambau did not instruct his attorney to represent him at the inquiry.  He however indicated that he instructed counsel to represent him.  He further indicated that he wanted to be furnished with further particulars in respect of the misconduct charge against him.  The Presiding Officer granted his request for a postponement, provided that Mr. Rambau’s counsel should appear before him on the remand date and that he should formally request the Commission to be furnished with further particulars in writing.

On 20 June 2011 counsel appeared on behalf of Mr. Rambau at the misconduct inquiry. No further particulars were requested from the Commission at that stage.  The defence again requested a postponement pending finalization of the criminal matter against Mr. Rambau.  They indicated that the criminal case would likely be concluded in October 2011.  The Presiding Officer granted a postponement until 12 September 2011. Counsel for Mr Rambau thereafter requested disclosure and/or discovery of all documents, statements, a list of witnesses etc. from the Commission which was duly submitted.

Neither Mr Rambau nor his counsel was present at the last occasion.  Mr Rambau submitted a medical certificate indicating that he was unfit for work, due to “diabetes mellitus”.  Contact had eventually been made with Mr Rambau’s counsel.   A date for the continuation of the inquiry will be set soon. The purpose of the report was to show cause why Mr Rambau’s remuneration should not be withheld.

Progress Report for Provisional Suspension of a Magistrate: Mr M Morake
Mr Meijer said on the issue of Mr M Morake, the Minister, on the advice of the Commission
provisionally suspended Mr Morake from office with effect from 4 November 2010 which
suspension was confirmed by both Houses of Parliament on 18 and 24 November 2010
respectively.
Mr Morake is the Magistrate and Judicial Head at Lichtenburg.  Several
complaints were lodged with the Magistrates Commission against Mr Morake.

The Commission had charged him with several counts of misconduct which were contained in the
charge sheet that was served on him on 29 December 2010. Having considered Mr Morake’s written explanation on the charges of misconduct, the Commission’s Ethics Committee at its meeting held on 10 February 2010 resolved that the misconduct inquiry be proceeded with.  A notice of hearing was served on Mr Morake.   The inquiry into Mr Morake’s alleged misconduct commenced on 11 April 2011.  Mr Morake’s representative requested the Presiding Officer to postpone the disciplinary proceedings against Mr Morake. They argued that Mr Morake will appeal against his conviction once a sentence has been imposed and requested that the inquiry be kept in abeyance until after the outcome of the criminal case on appeal. 
The Presiding Officer granted a postponement until 24 June 2011, provided that Mr Morake should submit proof of the fact that he indeed filed an appeal against his criminal conviction of theft.

A decision by the Magistrates Commission to determine to withhold Mr Morake’s      remuneration in terms of section 13(4A)(a) of the Magistrates Act No 90 of 1993 was confirmed by Parliament on 24 November 2011.  Mr Morake was currently not receiving any remuneration whilst the misconduct inquiry was proceeding against him.

Withholding of Remuneration of a Magistrate: Ms N Ndamase
Mr Meijer stated that in relation to the case of Ms N Ndamase, the Commission resolved at its meeting on 20 and 21 July 2012 to recommend that Mrs. Ndamase be removed from office on the ground of eleven counts misconduct in terms of section 13(4) (a)(i) of the Magistrates Act, 1993 (Act 90 of 1993, hereinafter the Act).

Having considered the Commission’s recommendation as contained in its letter to me dated 23 July 2012, to suspend Mrs. Ndamase from office, I on 8 August 2012 suspended Mrs. Ndamase from office and tabled a report in this regard in Parliament.
Mrs. Ndamase was invited to show cause why the Commission should not determine to withhold her remuneration in terms of section 13(4A)(a) of the Act. Having considered Mrs. Ndamase`s representations, the Commission at its last meeting determined to withhold Mrs. Ndamase`s remuneration in terms of section 13(4A)(a) of the Magistrates Act. 

The Commission was of the view that the withholding of Mrs. Ndamase`s remuneration, pending the consideration by Parliament of a recommendation by the Magistrates Commission for her removal from office, was justified. There seemed to be no reason why a magistrate, on suspension, or provisional suspension for that  matter, who was not fit to hold office, and was recommended to be removed from office for that reason, should be paid for the period during which he or she was suspended prior to his/her removal.

Mr Nzimande said they’ve got to close the matters and wait for any direction that would come from the court. He proposed that the Committee should agree with the Commission on the withholding of remuneration of the Mr Ndamase.

Discussion
Mr D Bloem (COPE) supported proposal by Mr Nzimande.

The Committee agreed with the withholding of remuneration of Mr Ndamase.

The Chairperson thanked the Commissioners for their attendance.

The meeting was adjourned.



Present

  • We don't have attendance info for this committee meeting

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: